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Why You Should Throw Small Wrenches

I have been in Alex's shoes and have had to fight the disconcerting impulse to capitulate to a prosecutor's scheduling request to the detriment of the client, especially when the prosecutor's reasoning was something I could relate to, like leaving early to beat traffic so the kids could get to grandma's house before bedtime.

It's around 2:30 on a Friday afternoon before a long weekend. Many New Yorkers are checking Google Maps and mentally calculating how much work they can get done and still avoid traffic jams to get out of town for the brief holiday. An attorney I supervise emails me that a clerk has scheduled a bail review for Tuesday afternoon for a client who was remanded. The chance that the judge would reduce bail to an amount that her family could pay was about the same as the chance that the Supreme Court would consider a handwritten pro se brief, but those are the odds we public defenders like to play.

A few minutes after the email, the attorney bursts into my office. The clerk has just called him back and advised if we get to the courtroom in 15 minutes we can do the bail review then. We scramble to find blazers that (arguably) match our casual Friday attire and race walk to court reviewing the arguments that Alex, the new attorney will make.

On the way, Alex dutifully calls the clerk to assure him that we're on our way.

The clerk asks if Alex has notified the prosecutor. He hadn't. He pauses to groan and then, while still hurtling down the Street, calls her. Voicemail. He texts. No dice. He emails. She responds that she's in a meeting, and insists that we keep the Tuesday court date she requested.

A bit about Alex. In the first two months on the job he has visited one client in jail on a weekend, and escorted another client on an hour-long subway ride to his assisted living facility after his court date. There is no doubting his client-centered bona fides. Practicing in NYC, he is also blessed (cursed?) with a native Midwesterner's niceness.

Back to Friday afternoon. After the email from the prosecutor ensconced in her meeting, Alex turns to me and says, “We could just wait until Tuesday.”

I must confess, there's part of me that thought, “If we postpone to Tuesday, I can take advantage of the office's early closure and get home early.. and… WTF!!?? THERE'S A MOTHER IN JAIL AND WE HAVE TO DO WHAT WE CAN TO GET HER OUT!”

How quickly he nearly caved in to a prosecutor's scheduling demand horrified Alex. Discussing hypotheticals in training, Alex centered the client's concerns. Living up to the ideals we express in hypotheticals, however, can be challenging when mired in the drama of the courtroom. In the moment, when another human tells you they're being inconvenienced ( whether they are a client or a prosecutor) a typical human inclination (whether you are a Midwesterner or a New Yorker) is to take a small step to make life easier for them.

Because of this inclination the negotiation tactic of “wincing” works. In Secrets of Power Negotiating, Roger Dawson writes that responding to an initial offer with a visible wince will often result in an improved counter-offer. People want to please other people, and something as simple as the twitch of a cheek can change one person's behavior. The prosecutor may not have been in the same room as Alex, but her email was the digital equivalent of a wince.

Implicit bias likely played a role in Alex's instinct to place the prosecutor's scheduling needs over his duty to his client. He and the prosecutor share a race and a professional class, which despite their adversarial relationship may boost empathy. I have been in Alex's shoes and have had to fight the disconcerting impulse to capitulate to a prosecutor's scheduling request to the detriment of the client, especially when the prosecutor's reasoning was something I could relate to, like leaving early to beat traffic so the kids could get to grandma's house before bedtime. The concerns of the prosecutor in front of us, unfortunately, may strike some of us as more pressing than the concerns of clients hidden in jails miles away from us.

Resisting any impulse to center the concerns of the prosecutor over those of our clients is a vital skill for a public defender. Alex's training had reached the time where he needed to practice that skill.

Alex and I e-mail the prosecutor back a firm response that we're here in court, the judge has the file and we can wait until her meeting is over. The prosecutor responds that we're being “wildly inappropriate” asking her to come to court at 3:00 on a Friday afternoon, but resigns herself to coming.

Alex and I sit in the quiet courtroom watching the steady shuffle of state paralegals asking for subpoenas to be signed and detectives sauntering up to the judge with search warrants.

Finally, all parties are present and Alex launches into the story of a mother who missed court dates because of her pregnancy, and whose family has struggled to scrape together $500 bail. Alex's application to have the bail reduced is denied with the same perfunctoriness with which the subpoenas and search warrants were signed.

Despite the lost argument, two Good Things came out of that Friday afternoon in the courtroom.

For 5 minutes at least, the mechanical grinding out of subpoenas and warrants stopped and the judge, prosecutor, clerks and court officers were forced to listen to the story of one human being whose life was affected by their shuffling of legal papers. A tiny wrench was thrown into the cogs of the criminal justice machine.

Alex did a few reps to increase his public defender muscle. Standing up for little things, like scheduling, is hard, even when we talk a good talk about standing up for big things. So we nudge each other in these moments to hold fast, make a prosecutor's life a little bumpier, and keep tossing small wrenches into the system. Then when we've got to take more difficult stands and heave larger wrenches, we'll have the strength and stamina to do so.

October 30, 2018: NAPD releases a video about its achievements over the 5 years since forming in November in 2013. This films was coordinated by NAPD Steering Committee Member and San Francisco Public Defender Jeff Adachi and debuted at the Racial Justice Training and 5 Year Celebration in Baltimore, Maryland. You can watch the video HERE

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July 1, 2018: General Registration opens for the “WE THE DEFENDERS” TRAINING CONFERENCE, November 26-29, 2018, Indianapolis, IN

Due to overwhelming demand, NAPD will again offer this comprehensive Investigator and Social Worker/Sentencing Advocate training experience! The program will include one track for Investigators and a separate track for Social Worker/Sentencing Advocates. Hear from nationally recognized experts who will share their knowledge on a wide range of topics relevant to the work you do each and every day. Network with other criminal defense practitioners from around the country and find your tribe.
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January 23, 2018: In response to US Attorney General Jeff Session's reversal of prior policy on the imposition of fines and fees for criminal defendants, NAPD submitted the following letter on behalf of the public defender community. You can read the letter HERE
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